LaFollette, Godfrey & Kahn, by Attorney Peter Albrecht,
Suite 500, One East Main Street,
Madison, Wisconsin, appearing on behalf of the City of Viroqua.

FINDINGS OF FACT, CONCLUSIONS OF
LAW

AND ORDER CLARIFYING BARGAINING UNIT

Wisconsin Council 40, AFSCME, AFL-CIO filed a petition on February 18, 2002,
with the
Wisconsin Employment Relations Commission seeking to include the positions of Street
Superintendent and Utility Supervisor into an existing bargaining unit of City of Viroqua
employees
which Wisconsin Council 40 represents. The City of Viroqua opposed the petition on the
basis that
both positions are held by supervisors.

Hearing in the matter was held in Viroqua, Wisconsin on August 1, 2002 before
Examiner
Lauri A. Millot, a member of the Commission's staff. AFSCME declined to file a brief
while the
City's brief was received on September 24, 2002. The hearing transcript was received on
November
18, 2002.

Dec. No. 29644-C

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Dec. No. 29644-C

Having reviewed the record and being fully advised in the premises, the Commission
makes
and issues the following

FINDINGS OF FACT

1. Wisconsin Council 40, AFSCME, AFL-CIO, hereinafter Union, is a labor
organization
with its offices located at 18990 Ibsen Road, Sparta, Wisconsin.

all regular full-time and part-time employes of the City of
Viroqua, excluding
professional,
supervisory, managerial and confidential employes and employes with the power of arrest.

2. City of Viroqua, hereinafter City, is a municipal employer with its offices
located at
428 South Main Street, Viroqua, Wisconsin. The City provides governmental services to the
public
of the City of Viroqua.

3. The incumbent in the position of Street Superintendent is Steve Clark. Clark
has been
employed by the City for 17 1/2 years, 15 years of which have been in his current position
although
the title has been changed over that time period. Clark's supervisor is Tom Henry, City
Director of
Public Works.

Clark's designated work hours are Monday through Friday from 7:00 a.m. to
3:30 p.m.
although he usually starts work at 6:15 a.m. and his ending time varies due to work
responsibilities.
Clark regularly works more than 40 hours a week, does not earn overtime, but may take
time off after
completing his 40 hour work week provided he determines it is feasible with his work load
and
responsibilities. Clark earns a salary of approximately $40,000 ­ which is
approximately $8,000 -
$10,000 more on an annual basis than the wages received by the employees he supervises.
Clark
receives the same vacation, holiday and sick leave benefits as a member of the bargaining
unit with
his same number of years employed in the Public Works Department, but has the additional
benefit
of a $400 allowance to purchase items not covered by the City's health insurance plan which
is not
available to bargaining unit employees.

The Utility Superintendent replaces Clark in Clark's absence.

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Dec. No. 29644-C

4. The job description for the Street Superintendent reads as follows:

JOB TITLE: STREET SUPERINTENDENT

PURPOSE. To assist the DPW with the operation of
the Viroqua
Streets and Sanitation Divisions of the Public Works Department.

EDUCATION: High school or equivalent.

EXPERIENCE: Must have worked five (5) years in comparable
work area.

GENERAL QUALIFICATIONS:

Good moral character with a willingness to learn and cooperate.

Good leadership ability.

Must be in a physical condition that will allow for the satisfactory
performance of tasks required with the job.

Must have a CDL license with proper endorsements needed to drive
the equipment.

Must have the ability to operate any equipment used in the Public
Works Department.

RESPONSIBILITIES:

Supervise the day to day operation of the streets and
sanitation
divisions.

Maintain a good line of communication
with the DPW and City Clerk's office.

Supervise and work with crew.

Written evaluation of employees in your
department at least once per year and discipline when
necessary.

Take part in interview and hiring of
employees in department.

Prepare budget, if needed, and present to
Director of Public Works.

Perform other public works tasks when
assigned.

Be familiar and comply with rules and
regulations of the Public Works Department.

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Dec. No. 29644-C

5. Clark assigns work hours and job duties daily to eight Street Division
employees who
perform street maintenance, sanitation, and recycling work. Clark has the independent
authority to
change the work hours and work responsibilities of these employees. Clark has independent
authority
to call-in Public Works employees. Clark approves time off, vacation, and sick leave
requests
submitted by these employees. Clark approves employee time cards.

Clark has participated in the hiring of Public Works employees. Clark has
reviewed
applications, recommended candidates for interview, prepared questions for the interview,
participated
at the interview and has recommended candidates for hire to the Personnel Committee. The
candidates
Clark recommended were offered positions with the City. Clark does not attend candidate
interviews
when he has another commitment.

Clark makes verbal recommendations to Henry regarding the continued employment
of
probationary employees.

Clark has investigated situations of potential discipline, has independent authority to
counsel
employees prior to the imposition of discipline and has imposed discipline in the form of a
written
warning. Clark has the independent authority to send an employee home from work. On
one
occasion Clark received a verbal complaint that would have resulted in a grievance had he
not reached
resolution with the employee.

Prior to 1998, Clark completed performance evaluations for the Public Works
employees.
Clark and his supervisor, Henry, both prepared performance evaluations for employees and
then met
with each employee and reviewed both prepared evaluations. The City, and therefore Clark,
no
longer complete performance evaluations for employees. Clark does not recommend merit
raises.

6. Clark occasionally will operate dump trucks, loaders, graders and will plow
snow.
Clark's occasional performance of bargaining unit work occurs more during the winter than
during
the summer. Clark spends approximately three hours per day working with bargaining unit
members.

Clark attends Personnel Committee meetings and City Council meetings on an
as-needed
basis. Clark is the City designated Weed Commissioner.

Clark participated on the City's side during the negotiation of the 2000-2002
collective
bargaining agreement with the Union.

Clark possesses supervisory duties and responsibilities in sufficient combination and
degree
to be a supervisor.

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Dec. No. 29644-C

7. The incumbent in the position of Utility Superintendent is Leland Anderson.
Anderson
began working for the City in January of 2000. Anderson's supervisor is Tom Henry, City
Director
of Public Works.

Anderson's designated hours are Monday through Friday from 7:00 a.m. to
3:30 p.m. although
these hours vary due to job duties. Anderson earns a salary of approximately $40,000 and
does not
receive overtime or compensatory time. His salary is approximately $8,000 - $10,000 more
on an
annual basis than the wages received by the employees he supervises. He receives the same
holiday
and sick leave benefits as Clark and three weeks vacation leave which is one less than Clark.
Anderson receives the additional benefit of a $400 allowance to purchase items not covered
by the
City's health insurance plan which is not available to bargaining unit employees.

The Street Superintendent replaces Anderson in Anderson's absence.

8. The job description for the Utility Superintendent reads as follows:

JOB TITLE: UTILITY SUPERINTENDENT

PURPOSE: To assist the DPW with the maintenance of the Viroqua
Water and Sewer Divisions of the Public Works Department.

EDUCATION: High
school or equivalent. Must possess the
necessary license requirements of the DNR for the operation of the City Water and Sewer
Utility or be able to obtain within one (1) year.

EXPERIENCE: Must have worked five (5) years in water and
sewer or related experience.

GENERAL QUALIFICATIONS:

Good
moral character with a willingness to learn and cooperate.

Good leadership ability.

Must be in a physical
condition that will allow for the satisfactory performance of tasks
required with the job.

Must have a CDL license
with proper endorsements for driving necessary trucks.

Must have the ability to
operate any equipment used in the Public Works Department.

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Dec. No. 29644-C

RESPONSIBILITIES:

Supervise the day to day operation of the water and sewer utility.

Be sure required samples
and tests are taken and sent to respective labs for analysis.

Maintain a good line of communication with the
DPW and
Utility Clerk.

Keep required records for the utilities.

Supervise and work with crew.

Written evaluation of employees in your department at least
once per year and discipline when necessary.

Take part in interview and hiring of employees in department.

Prepare yearly financial proposals, if needed, and present to
Director of Public Works.

Perform other public works tasks when assigned.

Be familiar and comply with rules and regulations of the Public
Works Department.

9. Anderson assigns work hours, work locations and work orders to four
employees who
make up the Utility Division of the Public Works Department. The Utility Division is
responsible for
the maintenance of all lift stations, water towers, wells, manholes, wastewater mains, the
wastewater
treatment plant and any sewer problems. Anderson may change an employee's work
assignment
during the course of a day as a result of emergencies that arise, his re-prioritization of
projects, or
when he determines it is more efficient for project completion.

Anderson has participated in one hiring process during his employment with the
City.
Anderson reviewed candidate applications, participated in the candidate interviews, and
offered his
recommendation as to who should be hired to the City's Personnel Committee. The
candidate that
Anderson recommended was hired by the Personnel Committee.

Anderson has not disciplined an employee. At hire, Anderson was informed by the
Personnel
Committee that he had the independent authority to issue a written reprimand. Anderson
has not
completed any evaluations of employees. Anderson has offered a verbal

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Dec. No. 29644-C

evaluation of two employees who desired to transfer from one division to the other
division within
the Department of Public Works. Anderson has not received any grievances from
employees.

Anderson attends Personnel Committee meetings and City Council meetings on an
as-needed
basis.

Anderson participated on the City's side during the negotiation of the 2000-2002
collective
bargaining agreement with the Union.

10. Anderson spends approximately fifty percent (50%) of his time supervising
employee
maintenance of the City's water and wastewater infrastructure. Anderson supervises
employees at
job sites. Anderson responds to questions at job sites and makes decisions when necessary.

Anderson receives complaints and sewer backup calls and responds by viewing and
assessing
the situation, and calling in the appropriate employee to fix the problem.

Anderson completes forms for the Department of Natural Resources. Anderson
monitors
water samples and either completes or reviews documentation of the samples which are
submitted
to the DNR. Anderson is the only employee of the Public Works Department that holds all
licensures
required by the DNR to operate the wastewater facility and water well system.

Anderson possesses supervisory duties and responsibilities in sufficient
combination and
degree to be a supervisor.

Based on the above and foregoing Findings of Fact, the Commission makes and
issues
the
following

CONCLUSIONS OF LAW

1. The incumbent in the position of Street Superintendent is a supervisor within
the
meaning of Sec. 111.70(1)(o)1, Stats. and therefore is not a municipal employee within the
meaning
of Sec. 111.70(1)(i), Stats.

2. The incumbent in the position of Utility Superintendent is a supervisor within
the
meaning of Sec. 111.70(1)(o)1, Stats. and therefore is not a municipal employee within the
meaning
of Sec. 111.70(1)(i), Stats.

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Dec. No. 29644-C

Based on the above and foregoing Findings of Fact and Conclusions of Law, the
Commission
makes and issues the following

ORDER CLARIFYING BARGAINING
UNIT

The Street Superintendent and the Utility Superintendent continue to be excluded
from
the
bargaining unit described in Finding of Fact 1.

Given under our hands and seal at the City of Madison, Wisconsin, this 25th day of
March, 2003.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

A. Henry Hempe, Commissioner

Paul A. Hahn,
Commissioner

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Dec. No. 29644-C

City of Viroqua

MEMORANDUM ACCOMPANYING FINDIGNS
OF FACT,

CONCLUSIONS OF LAW AND ORDER
CLARIFYING BARGAINING UNIT

POSITIONS OF THE PARTIES

Wisconsin Council 40

Wisconsin Council 40 takes the position that the positions of Street Superintendent
and Utility
Superintendent are municipal employees and not supervisors and therefore the positions
should be
included in the bargaining unit.

City

The City argues that the Street Superintendent and Utility Superintendent are
supervisors.
It asserts that the evidence obtained at hearing, in addition to supporting their supervisory
status
based on the multifactor test the Commission utilizes when evaluating whether an employee
is a
supervisor, supports a "you just know it when you see it" conclusion.

In addressing the relevant factors, the City notes that the incumbents have been given
the
authority to effectively recommend the hiring, promotion, transfer, discipline and discharge
of
employees. Both schedule and approve overtime, authorize time off requests, have the
authority to
approve time cards and payroll, and maintain personnel files. Clark and Anderson are the
first step
in the grievance procedure and thus have the authority to adjust grievances. Both have the
authority
to direct and assign the workforce, independently assess and direct the completion of projects
through
employee job assignment and respond to citizen complaints and emergencies, all of which
require that
they use their discretion and judgment.

The City asserts that in comparing Clark and Anderson's salary to that of the
bargaining unit
employees, there is an approximate $10,000 difference. The evidence is unrefuted that the
additional
$10,000 is compensation for their additional duties and responsibilities as supervisors.

In response to the Union's line of questioning regarding Clark's and Anderson's
performance
of bargaining unit work alongside bargaining unit members, the City points out that both
incumbents
testified that the majority of their time is spent on non-bargaining unit work.

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Dec. No. 29644-C

For the above reasons, the City asserts that the positions of Street Superintendent and
Utility
Superintendent should be found to be supervisors who continue to be excluded from the
bargaining
unit.

DISCUSSION

Section 111.70(1)(o)1, Stats. defines a supervisor as an individual who:

. . . has authority, in the interest of the municipal employer, to hire, transfer,
suspend, lay off,
recall, promote, discharge, assign, reward or discipline other employees, or to adjust their
grievances
or effectively to recommend such action, if in connection with the foregoing the exercise of
such
authority is not of a merely routine or clerical nature, but requires the use of independent
judgment.

When interpreting this statutory language, we consider the following:

1. The authority to effectively recommend the hiring,
promotion,
transfer, discipline or discharge
of employees;

2. The authority to direct and assign the
work
force;

3. The number of employees supervised,
and
the number of other persons exercising greater,
similar or lesser authority over the same employees;

4. The level of pay, including an
evaluation
of whether the supervisor is paid for his/her skill or
for his/her supervision of employees;

5. Whether the supervisor is primarily
supervising an activity or is primarily supervising
employees;

6. Whether the supervisor is a working
supervisor or whether he spends a substantial majority
of his/her time supervising employees; and

7. The amount of independent judgment
exercised in the supervision of employees.

Taylor County, Dec. No. 24261-F (WERC, 5/98).

Not all of the above-quoted factors need to reflect supervisory status for us to find an
individual to
be a supervisor. Our task is to determine whether the factors appear in sufficient
combination and
degree to warrant finding an employee to be a supervisor. Rice Lake Housing Authority,
Dec.
No. 30066 (WERC, 2/01).

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Dec. No. 29644-C

Street Superintendent

Looking first to Factor 1, we find Clark effectively recommends hiring and discipline
of
employees. Clark has not had the opportunity to promote, transfer or discharge employees.

With regard to hiring, Clark reviews candidate applications, prepares questions and
participates in candidate interviews, and has recommended candidates for hire. Clark's
recommendations have been received and followed by his supervisor, the Public Works
Director, and
by the Personnel Committee. Although we are concerned that Clark did not participate in an
interview when he had another commitment, on balance we find that Clark effectively
recommends
hiring.

As to discipline, the record is clear that Clark has independently imposed a written
reprimand.

With regard to Factor 2, Clark assigns work to eight street department crew
members. Clark
determines what work will be completed daily and assigns crew members to complete the
work.
Clark may change these responsibilities during the course of the day. At no time is it
necessary for
Clark to consult with his supervisor when assigning work or hours. Clark has the authority
to alter
the work hours for these employees. Clark calls in employees when necessary. Clark
determines and
assigns overtime when necessary.

Addressing Factor 3, Clark has primary authority over eight employees. Clark has
secondary
authority over four water and wastewater division employees when Utility Superintendent
Anderson
is absent. Clark and Anderson report to Public Works Department Director Henry.

As to Factor 4, Clark is a salaried employee annually earning approximately $8,000
to
$10,000 more than the most senior street operators. There is no evidence to indicate that
this
differential is based on seniority, especially since Clark's benefits are the same as the
bargaining unit
members with the same level of seniority. We conclude the differential reflects Clark's
supervision
of employees.

As to Factors 5 and 6, the majority of Clark's time is spent supervising employees
rather than
work activity. Although Clark may perform bargaining unit work, this occurs primarily
during the
Winter months when there is not sufficient manpower to respond to the weather conditions.

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Dec. No. 29644-C

Concluding with Factor 7, Clark exercises independent judgment daily when
determining what
project will be addressed, what work will be completed during the day, and which employee
will
perform it. Although Clark weekly receives direction from the Public Works Director as to
project
priorities, it is Clark's responsibility to create a timetable for completion of each project.

Given Clark's role in hiring, discipline, and grievance adjustment; his direction of the
work
assignments and work days of eight employees; his compensation as a supervisor; and his
exercise
of discretion when exercising his supervisory authority, we find that Clark is a supervisor.

Utility Superintendent

Looking at Factor 1, Anderson has been involved to a significant degree in one hiring
process
and although he has not disciplined an employee, he has been informed by the City that he
has the
authority to impose discipline up to and including a written reprimand.

With regard to Factors 2 and 3, Anderson directs the work day and work
responsibilities of
four employees and has the same authority in that regard as does Clark.

As to Factor 4, Anderson who has less than two years seniority with the City, earns
the same
salary as Street Superintendent Clark who has 17 years seniority with the City. In the
context of the
pay differential between Anderson and the employees he supervises, we find this to be
persuasive
evidence that Anderson is compensated for his supervisory responsibilities since he has
substantially
less seniority than Clark.

As to Factor 5, Anderson supervises both employees and work activities. The four
employees
under his supervision receive their work assignments and hours of work from Anderson.
They must
obtain his approval for vacation and sick leave. Inherent in Anderson's responsibilities is
also the
supervision of the City Water system. Although some of these responsibilities are performed
by
bargaining unit members, we note that Anderson is the only City employee with the DNR
certifications necessary to complete the work. We find that Anderson's expertise,
certifications and
experience are substantive and enhance his authority and supervision of employees.

Regarding Factor 6, Anderson spends the majority of his time supervising employees.

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Dec. No. 29644-C

Finally, as to Factor 7, Anderson exercises independent judgment when performing
his
supervisory duties and responsibilities.

Given the foregoing, and noting that Anderson has limited tenure with the City, we
find that
Anderson is a supervisor. His involvement in hiring included the authority to effectively
recommend
an employee for hire. Although he has not disciplined employees, he has been verbally
informed he
has the independent authority to do so. Anderson directs the day-to-day work of four
employees,
including approval of vacation and sick leave. We find Anderson's independent exercise of
judgment
compelling and conclude that he has supervisory duties and responsibilities in sufficient
combination
and degree to be a supervisor.